Murdoch v. Murdoch, (1976) 1 A.R. 378 (TD)

• Judge: Bowen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 08, 1976
• Citations: (1976), 1 A.R. 378 (TD)

Murdoch v. Murdoch (1976), 1 A.R. 378 (TD)

MLB headnote and full text

Murdoch v. Murdoch

Indexed As: Murdoch v. Murdoch

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Bowen, J.

October 8, 1976.

Summary:

This case arose out of a husband's petition for divorce and his wife's counter-petition for divorce and maintenance. Before the trial of the petitions the husband conveyed most of his property to his son in an attempt to defeat his wife's claims against him. The husband's petition for divorce was heard, a decree nisi followed by a decree absolute was ordered and the wife was awarded $200.00 a month maintenance. The wife's counter-petition was adjourned and was later heard together with the wife's action to set aside the conveyances from the husband to the son.

The Supreme Court held that the wife was entitled to impeach the conveyances to the son under the Statute of Elizabeth, 1571 (Imp.), 13 Eliz., c. 5 - see paragraphs 20 to 22. The Supreme Court held that the husband's intent in conveying the property to his son showed clearly his intent to hinder, delay or defraud his wife in pursuing her claim against him and the court set aside the conveyances - see paragraphs 15 to 23.

The Supreme Court held that notwithstanding the decree absolute on the husband's petition, the court had jurisdiction to consider the question of maintenance on the wife's counter-petition, which had been adjourned. The Supreme Court held that in any event circumstances had changed by the setting aside of the conveyances and the resulting increase in the husband's assets and variation of the maintenance order made on the husband's petition could properly be considered - see paragraphs 44 to 45.

The Supreme Court awarded the wife a lump sum of $65,000.00 for maintenance secured by that portion of the husband's land which his business could exist without - see paragraphs 44 to 52.

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance award - Jurisdiction of court respecting maintenance orders - A husband petitioned for divorce and the wife cross-petitioned for divorce and maintenance - A decree nisi and a decree absolute was granted to the husband but the wife's cross-petition was adjourned - On the reconvening of the wife's petition the Alberta Supreme Court, Trial Division, held that the prior decree absolute with a maintenance order against the husband did not affect the jurisdiction of the court to consider maintenance in the wife's petition - See paragraph 44.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance award - Lump sum - The husband operated a ranching business and owned total assets of $199,500.00 - The Alberta Supreme Court, Trial Division, held that the purpose of a lump sum award was to provide maintenance in those cases where by reason of the nature or amount of the assets it is inappropriate or impossible to give adequate periodic sums but it is not to be construed as an equitable division of assets - The ranching business would not support an adequate periodic payment to the wife - The Alberta Supreme Court, Trial Division, awarded the wife a lump sum of $65,000.00 secured by that portion of the land which the ranching business could exist without - See paragraphs 44 to 52.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance award - Variation of maintenance award - Divorce Act, R.S.C. 1970, c. D-8, ss.11(2) - A husband petitioned for divorce and the wife cross-petitioned for divorce and maintenance - A decree nisi and absolute was granted to the husband but the wife's cross-petition was adjourned pending the wife's action to have the husband's conveyances of land to their son set aside - The decree absolute included a maintenance order in favour of the wife - Upon the reconvening of the wife's petition and the action to set aside the conveyances, the Supreme Court set aside the conveyances - The husband argued that conditions had not changed to permit variation of the maintenance award - The Alberta Supreme Court, Trial Division, held that, since the husband had only one quarter section of land at the time of the original maintenance award, the setting aside of the conveyances and resulting increase in the husband's assets constituted a change in circumstances justifying a change or variation of the maintenance award - See paragraph 45.

Family Law - Topic 4030

Divorce - Corollary relief - Maintenance award - Factors affecting the maintenance award - Conduct of parties - Divorce Act, R.S.C. 1970, c. D-8, s. 11 - The Alberta Supreme Court, Trial Division, stated that the conduct of the parties must be divided into two areas: one dealing with the general day to day living during the marriage and the other pertaining to matrimonial offences by one or the other - The Supreme Court assessed the conduct of the parties in considering a lump sum maintenance award to the wife - See paragraphs 35 to 44.

Fraud And Misrepresentation - Topic 1204

Fraudulent conveyances - General principles - Statute of Elizabeth, 1571 (Imp.), 13 Eliz., c. 5 - Where applicable - The Alberta Supreme Court, Trial Division, held that the Statute of Elizabeth was applicable in Alberta - See paragraph 20.

Fraud And Misrepresentation - Topic 1272

Fraudulent conveyances - Conveyances impeachable by creditors and others - What constitutes a person entitled to impeach - Statute of Elizabeth, 1571 (Imp.), 13 Eliz., c. 5 - Wife - A husband conveyed most of his property to his son in order to defeat his estranged wife's claim against him for maintenance - The Alberta Supreme Court, Trial Division, held that the wife was entitled to apply to have the conveyances set aside under the Statute of Elizabeth - See paragraphs 20 to 22.

Fraud And Misrepresentation - Topic 1278

Fraudulent conveyances - Conveyances impeachable by creditors and others - What constitutes "to hinder, delay or defraud" - A husband conveyed most of his property to his son in order to defeat his estranged wife's claim against him - The Alberta Supreme Court, Trial Division, held that the husband's intent in conveying the property to his son showed clearly his intention to hinder, delay or defraud his wife in her claim against him - The Supreme Court set aside the conveyances - See paragraphs 15 to 23.

Cases Noticed:

Toronto Dominion Bank v. Michael, [1973] 1 W.W.R. 651, appld. [para. 20].

Goyan v. Kinash, [1945] 2 D.L.R. 749, appld. [para. 20].

Krause v. Krause, [1976] 2 W.W.R. 622, appld. [paras. 36, 47].

Feldman v. Feldman (1970), 75 W.W.R. 715, appld. [para. 46].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11.

Statute of Elizabeth, 1571 (Imp.), 13 Eliz., c. 5 [para. 19].

Authors and Works Noticed:

May on Fraudulent and Voluntary Conveyances (3rd Ed.), p. 102 [para. 21].

Counsel:

H.M. Beaumont, Q.C., for Irene Florence Murdoch;

L.R. Duncan, for James Alexander Murdoch and William Frederick Murdoch.

This case was heard at Calgary, Alberta, before Bowen, J., on the Alberta Supreme Court, Trial Division, Judicial District of Calgary.

On October 8, 1976, BOWEN, J., delivered the following judgment: